Subject: Prehearing Analysis and Case Workup
This transmittal amends chapter I-2-1 of the Hearings, Appeals and Litigation Law (HALLEX) manual to update the sections related to prehearing conferences (PHC) and a claimant's waiver of his or her right to appear at a hearing. The transmittal also adds a new section regarding a claimant's right to representation.
I-2-1-75 – In subsection A, we removed instructions regarding assignment of a designee to conduct the PHC if the case has not yet been assigned to an administrative law judge (ALJ). We also removed the requirement that an ALJ ask the Hearing Office Chief Administrative Law Judge to assign an authorized designee. In subsection B, we added the names of the Social Security Administration (SSA) forms referenced in the fourth and fifth bullet points. In the NOTE, we clarified when an ALJ can dismiss the title II portion of a concurrent claim during a PHC. In subsections B and D, we added references to new HALLEX I-2-1-80, as appropriate. In subsections C, D, and E, we replaced “authorized designee” with “Hearing Office (HO) staff” as appropriate. In subsection C, we also clarified that forms and information may be provided with a PHC notice and removed reference to specific forms and information. In subsection D, we also revised NOTE 1 to indicate that an attorney representative may submit a form SSA-1696 or other equivalent writing, and we included a citation to HALLEX I-1-1-11. We deleted NOTE 2 as the lists referenced would have previously been provided to the claimant. Former NOTE 3 has been moved to HALLEX I-2-1-80 B.1. Former NOTE 4 is now NOTE 2. In subsection E, at the end of the second paragraph, we also clarified how hearing office (HO) staff will document that we notified a claimant of his or her right to representation. Finally, we made formatting and minor editorial changes throughout the section.
I-2-1-80 – We added a new section titled, “Right to Representation.” This new section discusses the procedures involved in explaining to the claimant his or her right to representation. In subsection B.1, we added information previously in HALLEX I-2-1-75 D, NOTE 3, to clarify that if a claimant signs a waiver to appear at a hearing, he or she must be advised of his or her right to representation, and the effect of a waiver. We also incorporated the information previously in HALLEX I-2-6-52 B and C. However, we removed the requirement in the second paragraph of HALLEX I-2-6-52 B, requiring the ALJ to provide another copy of the acknowledgment letter and enclosures at a hearing because it may not be feasible during video teleconference hearings, and the claimant will have received such written information prior to the hearing. This new section also provides specific instructions for the various methods of notifying a claimant of his or her right to representation. Finally, the section provides guidance for when an ALJ will grant a hearing postponement for a claimant to obtain representation.
I-2-1-82 – In subsection A, we revised the NOTE to clarify that evidence must be submitted no later than five business days before the date of the hearing to be consistent with regulatory requirements in 20 CFR 404.1512 and 416.912. In subsections A and B, we removed reference to actions HO staff is required to take with regard to a claimant's request for waiver, aside from obtaining written documentation. In subsection B, NOTE 2, we added clarification that written documentation will not be required if the waiver to the right to representation was provided during a PHC. We also moved NOTE 2 to NOTE 3 and added references to 20 CFR 404.935 and 416.1435. In subsection C, we added “Prehearing Development Contacts” to the title. We also added clarification that notwithstanding a waiver, an ALJ or an authorized designee may schedule a PHC and when HO staff may contact an unrepresented claimant through prehearing development contacts. In subsection D, NOTE, we removed the requirement for ALJs to ensure represented claimants are aware of the consequences for failing to appear at a hearing. We created a new subsection E, which addresses when an adjudicator needs to proffer evidence. We moved the second paragraph of subsection D to the sub-subsection E.1. to address when to proffer evidence received after a hearing. Sub- subsection E.2. addresses when vocational expert and/or medical expert(s) testimony needs to be proffered. Finally, we made formatting and minor editorial changes throughout the section.
Date: November 20, 2018